ATTORNEYS:On
behalf of the plaintiffs-appellants, the cause was submitted on the brief of Ross
A. Seymour of Davis, Birnbaum, Marcou, Seymour & Colgan of
La Crosse.

Respondent

ATTORNEYS:On behalf of the
defendants-respondents, the cause was submitted on
the
brief of William W. Cassel of Madison.

COURT OF APPEALS

DECISION

DATED AND FILED

NOTICE

September 18, 1997

This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports.

Marilyn L. Graves

Clerk, Court of Appeals

of Wisconsin

A party may file with the Supreme Court
a petition to review an adverse decision by the Court of Appeals.See § 808.10 and Rule 809.62, Stats.

No.97-0260

STATE OF WISCONSIN

IN COURT OF
APPEALS

Ronald
Berry, John H. Boutin, Barbara J. Cram,

Roger
B. Demaske, Garnet L. Felts, Kay K. Fox,

Geraldine
A. Frei, John J. Gregar, James F.

McMahan,
Sherill L. Murphy, Steven R. Olson,

Betty
A. Preuss, Kenneth D. Randall,

Steven
J. Sawa, Lila M. Sommerfeldt,

John
R. Southworth, Darleen J. Ulrich,

Jerome
S. Weiner, James A. Wheeler,

Plaintiffs-Appellants,

v.

Labor
and Industry Review Commission,

Department
of Military Affairs, the Adjutant

General,

Defendants-Respondents.

APPEAL from a judgment of the
circuit court for Juneau County:JOHN W. BRADY, Judge.Affirmed.

Before Eich, C.J., Dykman, P.J.,
Deininger, J.

DEININGER, J. Ronald
Berry and eighteen other claimants appeal a judgment which affirmed the
decision of the Labor and Industry Review Commission(LIRC)todenythemunemploymentcompensationbenefits. Claimants terminated their employment in return for
early retirement and voluntary separation incentives offered by their
employer.They claim, however, that they
are entitled to benefits under an exception for employees who quit or accept a
layoff in lieu of the “suspension or termination by the employer of another
employe’s work.” Section 108.04(7)(am),
Stats.[1]The LIRC interprets the statute to require a
showing by the claimants that their voluntary terminations were related to the
identifiable, threatened termination of some other employee’s work.We conclude that the LIRC’s interpretation
of the statutory exception is entitled to great weight deference, and that it is
not unreasonable.Accordingly, we affirm.

BACKGROUND

Claimants
do not dispute the LIRC’s factual findings, which we summarize here.Claimants worked for the State of Wisconsin
Department of Military Affairs.The
department received word that the federal funding and authorizations for sixty-one
employees was to be eliminated.In
response, the department implemented a hiring and promotions freeze and
obtained authorization to offer “buy-outs” and early retirements to eligible
employees.

All
of the claimants accepted either voluntary early retirement or a voluntary
separation incentive pay buy-out, or a combination of both.One of the claimants “specifically indicated
that he requested voluntary early retirement and voluntary separation incentive
pay, and that if funds for voluntary separation incentive pay were not
available he would not accept voluntary early retirement.” As a result of
various personnel and cost-saving actions taken by the department, no
involuntary layoffs or terminations became necessary.The claimants did not establish that there were other employees
“identified for termination or suspension” whose places they took by
voluntarily terminating their employment.

The
LIRC concluded that the claimants’ “quitting was to take advantage of the
employer’s buy-out,” and that they had failed to establish that, had they not
terminated their work, another employee “would lose his or her job.” Thus, the
LIRC ruled that claimants were ineligible for unemployment compensation
benefits because they had terminated their employment “within the meaning of
§ 108.04(7)(a),
Stats., and that [their] quitting
was not for any reason constituting an exception to that section.”The claimants sought circuit court review of
the decision, and the court entered a judgment affirming the LIRC
decision.

ANALYSIS

We
review the LIRC’s decision, not that of the trial court.Stafford Trucking, Inc. v. DILHR,
102 Wis.2d 256, 260, 306 N.W.2d 79, 82 (Ct. App. 1981).We do not weigh the evidence or pass upon
the credibility of the witnesses.The
LIRC’s findings of fact will be upheld on appeal if they are supported by
credible and substantial evidence in the record.Section 102.23(6), Stats.;
seeApplied Plastics, Inc. v. LIRC, 121 Wis.2d 271, 276,
359 N.W.2d 168, 171 (Ct. App. 1984).

We
are not bound by the LIRC’s legal conclusions, DHSS v. LIRC, 159
Wis.2d 300, 309, 464 N.W.2d 74, 77 (Ct. App. 1990), and we will review its
conclusions of law de novo when the case is one of first impression.Kelley Co. v. Marquardt, 172
Wis.2d 234, 245-46, 493 N.W.2d 68, 73-74 (1992).In certain situations, however, we defer to the LIRC’s
interpretation of a statute.State
ex rel. Parker v. Sullivan, 184 Wis.2d 668, 699, 517 N.W.2d 449, 460-61
(1994). We will accord the LIRC’s interpretation great weight once we have
determined:

(1) [that] the agency was charged by the legislature
with the duty of administering the statute; (2) that the interpretation of
the agency is one of long-standing; (3) that the agency employed its
expertise or specialized knowledge in forming the interpretation; and
(4) that the agency’s interpretation will provide uniformity and
consistency in the application of the statute.

The
legislature has charged the LIRC with the duty of administering the
unemployment compensation statutes by hearing appeals from benefit
determinations made by the Department of Workforce Development.See §§ 103.04 and 108.09(6),
Stats.In its brief, the LIRC refers this court to six of its prior
decisions, dating from 1978 through 1994, where it interpreted and applied
§ 108.04(7)(am),
Stats.[2]Several of the decisions deal with
terminations involving early retirement or voluntary separation incentives. In
each, the LIRC interpreted the statute to require a showing that a claimant’s
voluntary termination of employment was related to an identifiable, threatened
termination or suspension of some other employee’s work.

We are thus satisfied that the
LIRC’s interpretation of § 108.04(7)(am), Stats., is one of long-standing; that in making it, the LIRC
has employed its expertise and specialized knowledge of employer-employee
relationships and transactions; and that the interpretation provides uniformity
and consistency in the application of § 108.04(7)(am).The LIRC’s interpretation is therefore
entitled to great weight deference from this court.Accordingly, we will sustain the LIRC’s interpretation of § 108.04(7)(am)
if it is “merely [] reasonable,” and the burden of proof is on the claimants to
show that the interpretation is unreasonable.SeeHarnischfeger Corp., 196 Wis.2d at 661, 539
N.W.2d at 102. An interpretation is unreasonable only if it “directly
contravenes the words of the statute, it is clearly contrary to legislative
intent or it is without rational basis.”Id. at 662, 539 N.W.2d at 103 (citations omitted).

We conclude that interpreting
§ 108.04(7)(am), Stats., to
require an identifiable, threatened suspension or termination of another
employee’s work is not unreasonable.The interpretation does not contravene the words of the statute. Section
108.04(7)(am),
requires that a claimant’s voluntary termination be “in lieu of a suspension or
termination by the employer of another employe’s work.”We fail to see how a claimant could
establish that his or her voluntary termination was “in lieu of” another
employee’s involuntary termination unless the claimant can identify another
individual, or group of individuals, who were able to keep working as a direct
result of the claimant’s voluntary action.The language of § 108.04(7)(am) does not prohibit the LIRC’s
interpretation and perhaps even compels it.

The claimants argue, however,
that the LIRC’s interpretation of § 108.04(7)(am),
Stats., is contrary to the
legislature’s intent that chapter 108 be “liberally construed to effect
unemployment compensation coverage for workers.” See Princess House, Inc.
v. DILHR, 111 Wis.2d 46, 62, 330 N.W.2d 169, 177 (1983); Section 108.01,
Stats.We disagree.The Laws of
1975, ch. 343, which originated as May 1976 Special Session Assembly Bill 1,
created the exception under § 108.04(7)(am).An analysis of the bill, prepared by the Legislative Reference
Bureau (LRB), describes the provision as follows:

Two new exceptions to the law’s quit disqualification are
added, to allow benefits in voluntary layoff (inverse seniority) situations and
to remove the requalifying requirement ….

.…

…The
first change [§ 108.04(7)(am)] allows an individual who elects to accept a
layoff, which avoids the necessity of laying off another worker, to receive
benefits if otherwise eligible.

1976 Special Session Assembly Bill 1, LRB-10638/2.The LRB’s analysis is not a conclusive
declaration of legislative intent, nor is its interpretation of the provision
binding on this court.Nonetheless, the
references to “inverse seniority” and acceptance of “a layoff, which avoids
the necessityof laying off another worker” (emphasis supplied),
persuade us that the claimants have not met their burden to establish that the
LIRC’s interpretation is contrary to legislative intent.

Finally,
the LIRC’s interpretation has a rational basis.It ensures that an employee who voluntarily steps forward to
accept a layoff so that another may avoid that fate, takes his colleague’s
place not only in the unemployment line, but also as a rightful recipient of
unemployment compensation benefits.The
“one-for-one” interpretation serves to separate that circumstance from those
present here, where employees responded to separation incentives offered by an
employer as a general cost-cutting or down-sizing measure.These claimants elected to accept the
separation incentives without knowing whether any department employees would
ultimately be involuntarily suspended or terminated.

The
LIRC acknowledges that it would be unreasonable to require a quitting employee
to “point to exactly whose position it was that he [or she] saved by
quitting.”But it claims that its
interpretation does not place that burden on the claimants.Rather, in its brief, the LIRC describes its
application of § 108.04(7)(am),
Stats., as follows:

[T]he commission does not require that an employe be able
to identify the individual or individual position saved by his quitting.What the commission does require is that
there be credible evidence that the employer had definitely elected to
terminate or suspend one or more people, and that the employe claiming the
statutory exception can demonstrate that he accepted termination or suspension
in lieu of termination or suspension of some other employe.

(Emphasis in original.)We conclude that this represents a rational way in which to interpret
and apply the statute.

Since
the claimants have not established that the LIRC’s interpretation of § 108.07(04)(am),
Stats., is unreasonable, we
affirm.

(7) VOLUNTARY
TERMINATION OF EMPLOYMENT. (a) If an employe terminates work with an
employing unit, the employe is ineligible to receive benefits ….

(am) Paragraph
(a) does not apply if the department determines that the suspension or
termination of the claimant’s work was in lieu of a suspension or termination
by the employer of another employe’s work.